There is no specific statute or regulation that formally mandates a Liability Medicare Set-Aside (LMSA). However, failing to consider Medicare's future interests can have significant consequences.
Involving a Medicare Set Aside (MSA) in a liability case requires careful consideration of Medicare's interests. The Centers for Medicare and Medicaid Services (CMS) have maintained that Medicare’s interests should be taken into account when resolving liability claims.
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Steps to involve a Liability Medicare Set-Aside (LMSA)
Unlike Workers' Compensation MSAs, LMSAs lack formal CMS review thresholds. No specific regulations mandate when liability cases require Medicare Set-Asides. Settlement parties must evaluate each case individually to determine LMSA necessity.
Involving a Medicare Set-Aside in liability cases requires systematic assessment and planning. The process protects Medicare's interests while facilitating settlement negotiations.
1. Assess the need for an MSA
Several factors trigger MSA consideration in liability cases. Settlement value represents the primary indicator for potential MSA involvement.
Common triggers include:
- Total settlement values exceeding $25,000
- Significant allocation for future medical expenses
- Claimant's current or future Medicare eligibility
- Ongoing medical treatment requirements
- Injury severity suggesting long-term care needs
The assessment requires case-by-case analysis. Consider the potential cost-shift to Medicare and plaintiff's Medicare status.
2. Obtain a professional MSA report
Professional MSA reports provide detailed calculations for future medical costs. These reports require comprehensive medical information and treatment projections.
Essential information includes:
- Complete medical records from injury date
- Current treatment plans and provider recommendations
- Diagnostic imaging and test results
- Medication lists and prescribing patterns
- Life expectancy considerations
The calculation methodology considers injury-specific treatment needs. Professional evaluators project future Medicare-covered expenses based on established medical protocols.
3. Integrate MSA reports into settlement negotiations
MSA reports influence settlement values and negotiation strategies. The projected amount affects both parties' settlement positions.
Settlement agreements should address Medicare's future interests explicitly. Release language must account for MSA obligations and fund allocation requirements.
The MSA amount typically becomes part of the overall settlement structure. Parties negotiate how MSA costs impact the total settlement value.
Historical Context and Guidance
- Important Memos and Calls: Since the 2001 “Patel Memo,” there have been varying interpretations regarding MSAs in liability cases. Key documents, like the May 25, 2011 “Stalcup” memo, emphasize considering Medicare’s interests.
- Rulemaking and Reviews: CMS initiated a rulemaking process in 2012, though it paused in 2014. Subsequent updates have been anchored around the Workers' Compensation Review Contractor’s (WCRC) ability to review Liability Medicare Set Asides (LMSAs).
- Future Regulations: CMS issued a notice in 2018 for anticipated rulemaking on future medicals. Speculation suggests this could address LMSAs, but proposed rule issuance has been extended several times, most recently to August 2020.
Considerations in Liability Cases
In the absence of firm regulations, liability cases need a tailored approach:
- Case-by-Case Analysis: Analyze the potential cost-shift to Medicare and the plaintiff's Medicare status.
- Risk-Management Philosophy: The payer’s risk management strategies and the parties' philosophies play a crucial role in decision-making.
Funding mechanisms for MSA Set Asides
Two primary funding approaches exist for MSA implementation. Each method offers distinct advantages and administrative requirements.
Lump sum funding:
- Immediate full funding at settlement
- Eliminates ongoing payment obligations
- Requires careful fund management planning
Professional administration:
- Structured payment arrangements
- Ongoing oversight and management
- Reduced initial settlement costs
Professional administration provides expert oversight and compliance monitoring. Self-administration places responsibility on the injured party.
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Documentation requirements
Thorough documentation supports MSA decisions and compliance efforts. Records demonstrate consideration of Medicare's interests regardless of final approach.
Key documentation includes:
- MSA assessment reports and calculations
- Medical evaluations supporting treatment projections
- Settlement negotiation records addressing Medicare interests
- Attorney opinions on MSA necessity
- CMS submission materials when applicable
Documentation protects all parties from future Medicare recovery actions. Proper records demonstrate good faith compliance efforts.
Post-settlement administration options
MSA funds require ongoing management after settlement completion. Two primary administration approaches serve different client needs.
Self-administration benefits:
- Direct control over fund management
- Potentially lower administrative costs
- Flexibility in provider selection and treatment timing
Professional administration benefits:
- Expert compliance oversight
- Detailed record-keeping and reporting
- Protection from administrative errors
- Medicare communication handling
Professional administrators manage fund disbursements and Medicare reporting requirements. They provide expertise in complex compliance situations.
Settlement thresholds for consideration
Settlement value guidelines help determine when MSA consideration becomes necessary. These thresholds derive from Workers' Compensation practices and industry standards.
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Common threshold guidelines
Industry practice references specific dollar amounts for MSA consideration. These amounts trigger initial assessment of Medicare Set-Aside necessity.
Typical thresholds include:
- $25,000 total settlement value
- $5,000 allocated for future medical expenses
- Combination of settlement size and medical allocation
These thresholds represent industry guidelines, not formal regulatory requirements. Each case requires individual assessment beyond threshold considerations.
Medicare eligibility considerations
Current and future Medicare eligibility significantly impacts MSA necessity. Settlement timing relative to Medicare enrollment affects compliance requirements.
Key eligibility factors:
- Current Medicare beneficiary status
- Age proximity to Medicare eligibility
- Disability-based Medicare qualification
- End-stage renal disease considerations
Medicare eligibility within 30 months of settlement typically triggers MSA consideration. Earlier eligibility dates increase compliance obligations.
H3 - Regulatory context
These thresholds lack formal CMS endorsement for liability cases. They represent industry best practices adapted from Workers' Compensation guidance.
CMS has not established specific LMSA submission requirements. The thresholds provide practical guidance for risk management decisions.
The importance of compliance with MSA requirements
Addressing Medicare interests protects all parties from future complications. Proper MSA consideration prevents costly recovery actions and legal challenges.
Protection strategies include:
- Thorough MSA assessment and documentation
- Professional evaluation of Medicare interests
- Appropriate settlement structure addressing future medical needs
- Compliance monitoring throughout settlement process
Risk management approaches vary based on case facts and party philosophies. Professional guidance helps navigate complex compliance requirements.
Professional administration for LMSAs
Professional administration offers expert oversight for LMSA fund management. Third-party administrators handle compliance requirements and Medicare reporting obligations. This service protects injured parties from administrative errors and regulatory complications.
Key service advantages:
- Expert compliance monitoring and reporting
- Detailed record-keeping for all transactions
- Medicare communication and correspondence handling
- Protection from administrative mistakes and oversights
Professional administration ensures proper fund utilization according to Medicare guidelines. Administrators verify that expenses qualify for MSA reimbursement before payment.
Administrative services and oversight
LMSA administrators handle day-to-day fund management responsibilities. They process reimbursement requests and maintain comprehensive documentation. Professional oversight protects against improper fund usage and compliance violations.
Core administrative functions:
- Review and approve medical expense reimbursements
- Maintain detailed transaction records and reporting
- Coordinate with Medicare regarding fund status
- Provide annual account statements and compliance reports
Administrators ensure MSA funds are used only for injury-related medical expenses. They verify provider credentials and treatment necessity before approving payments.
Risks of non-compliance with Medicare requirements
Failing to address Medicare's future interests creates significant legal and financial risks. All settlement parties face potential consequences for inadequate MSA consideration.
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Medicare recovery actions
Medicare can pursue recovery from multiple settlement parties. Recovery actions target funds that should have addressed future medical expenses.
Potential targets include:
- Injured plaintiffs who received settlement funds
- Insurance companies making settlement payments
- Attorneys facilitating settlement agreements
- Other parties involved in settlement process
Recovery actions can occur years after settlement completion. Medicare's subrogation rights continue despite settlement finalization.
Double damages provision
The Medicare Secondary Payer Act includes double damages penalties. This provision significantly increases financial exposure for non-compliance.
Double damages apply to amounts Medicare pays for injury-related care. The penalty doubles the original Medicare expenditure amount.
Impact on Medicare benefits
Improper MSA handling can affect future Medicare coverage. Beneficiaries may face coverage denials for injury-related treatment.
Medicare may refuse payment for services it believes settlement funds should cover. This creates personal financial liability for the injured party.
Looking Ahead
As the industry awaits final CMS rulemaking, stakeholders should remain vigilant about updates in the legislation affecting LMSAs.
For more detailed guidance on Medicare Set Asides, review the WCMSA Reference Guide.
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